APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Tazewell County, Dennis Minish, the defendant, was found guilty of the crime of robbery and sentenced to a term of not less than 2 nor more than 6 years in the penitentiary.
The factual situation which resulted in the defendant's conviction is as follows. On November 1, 1972, a William Durlacher was at his place of employment which was a Clark Service Station in Morton, Illinois. At 3 A.M. on this date the defendant and his companion, a Michael Peters, approached the station on foot and the defendant entered the building and inquired of the attendant Durlacher as to the location of the rest room. After receiving this information the defendant and Peters walked around the side of the building together. In approximately 2 or 3 minutes Peters entered the station, brandished a pistol (which was subsequently discovered to be a blank pistol) and announced a robbery. During this time the defendant was standing outside the door of the service station. Durlacher gave Peters $50 and some change. After receiving the money Peters left the station, said something to the defendant and pushed him in a westerly direction while he fled to the east.
Within minutes after the robbery both the defendant and Peters were apprehended by the police. At the time of their apprehension they were in a car being driven by Peters. At this time the police officer observed the defendant shuffling his feet in an effort to kick something under the car. An officer then found the gun used in the robbery under the car near the right front wheel. It was also at this time discovered that Peters had on his person $39 and some odd cents. The defendant had a $10 bill and a $1 bill.
During the course of the defendant's trial Peters testified to the effect that he decided to rob the gas station while he was in the rest room and that the defendant did not know of his intention prior to the robbery. He further testified that it was not until they were being apprehended that he informed the defendant that he had committed the robbery. He further stated that he did not give the defendant any of the proceeds of the robbery but had given him $10 earlier in the night.
The defendant's first contention is that his accountability for the robbery committed by Peters was not proven beyond a reasonable doubt.
• 1 A person is legally accountable for the conduct of another when, either before or during the commission of an offense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid, such other person in the planning or commission of the offense. (People v. Jones, 12 Ill. App.3d 643, 299 N.E.2d 77.) The proof of such acts, which would show a common purpose between individuals to perpetrate a crime need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of the act. See People v. Bristow, 8 Ill. App.3d 805, 291 N.E.2d 189.
In the instant case we not only have no proof of words of agreement between the defendant and his companion Peters, but on the contrary have direct testimony from Peters to the effect that there was no common purpose to commit the robbery. In examining the evidence adduced during defendant's trial we find (1) at 3 A.M. the defendant and Peters approached the station together, (2) the defendant stood outside the door while Peters robbed the attendant, (3) the defendant and Peters fled together, (4) they were apprehended together, (5) the defendant attempted to hide the gun used in the robbery, and (6) the defendant and Peters had between them the exact amount of money which was taken in the robbery.
• 2, 3 When confronted with such evidence could the jury correctly conclude that the defendant had the intent to assist in promoting the crime and did in fact aid and abet in its commission. We believe that the jury could and did correctly reach such a conclusion. To prove guilt beyond a reasonable doubt does not mean that a jury must disregard inferences that flow normally from the evidence. (People v. Chamberlain, 5 Ill. App.3d 235, 282 N.E.2d 784.) We are of the opinion that the jury's verdict is supported by the evidence notwithstanding the testimony of Peters which if believed would have exculpated the defendant. It is within the province of the jury to determine the credibility of all witnesses and the weight to be given their testimony, and a verdict will not be reversed unless the evidence is so unsatisfactory as to leave reasonable doubt of defendant's guilt. People v. Willis, 126 Ill. App.2d 348, 261 N.E.2d 723.
The defendant next assigns as reversible error the trial court's refusal to give Criminal Instruction 3.02 in its entirety.
The State tendered and the court gave a circumstantial evidence instruction which included only the first paragraph of I.P.I. Criminal Instruction 3.02. That given by the court is as follows:
"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at a verdict."
The defendant tendered I.P.I. 3.02 Criminal in its entirety which in addition to the first paragraph above set forth also contained the following additional paragraph:
"You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence."
The committee note contained in Illinois Pattern Jury Instructions Criminal, regarding instruction 3.02, is that the second paragraph should be given only when the proof of guilt is entirely circumstantial. In the case before us the proof of guilt was not entirely circumstantial, for eyewitness testimony placed the defendant approaching and leaving the scene of the crime with Peters and also placed the defendant just outside the service station door while the robbery was occurring. The attendant who was robbed made an in-court identification of the defendant. We do not believe that such testimony constitutes circumstantial evidence and consequently hold that the second paragraph of I.P.I. Criminal Instruction 3.02 was properly refused.
Lastly the defendant contends that this case should be remanded to the trial court for a hearing to determine whether his appearance before the jury in jail coveralls resulted from a voluntary waiver.
• 4 We could well hold that this issue is not properly before this court since defendant made no objection to the wearing of jail coveralls during his trial nor did he assign this point as error in his motion for a new trial. (See People v. Lampson, 6 Ill. App.3d 1099, 286 N.E.2d 358.) We will not, however, dispose of the defendant's contention on these grounds. The alleged error is one which we deem to be of sufficient import to affect the substantial rights of the defendant and therefore pursuant to Supreme Court Rule 615 (Ill. Rev. Stat., ch. 110A, sec. 615) this court will consider it.
We are mindful of the case of Xanthull v. Beto, 307 F. Supp. 903, in which the court stated that a jail uniform is not inherently prejudicial and the petitioner has the burden to establish the manner in which the uniform prejudiced his right to a fair trial. We are also not unmindful of the opinions of other courts which have adopted the view that an evidentiary hearing is necessary in order to determine whether a defendant's right to a fair trial was prejudiced by going to trial in jail clothing. See Watt v. Page, 452 F.2d 1174.
A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error. (Hernandez v. Beto, 443 F.2d 634.) We further note that in Hernandez the court stated "We do not paint with a broad brush these types of cases. Each case must be considered in its own factual context." (Hernandez v. Beto, 443 F.2d 634.) We agree with this ...